Articles

The Employment Judge was at pains to indicate it was not ‘the thin edge of the wedge’ but if it is allowed to stand by the EAT it will indeed ‘lower the bar’ for such claims.

 

London nightlife makes an appearance in the law reports as a result of the Court of Appeal decision in Commissioners for Her Majesty’s Revenue and Customs v Annabel’s (Berkeley Square Limited) and Others in which it ruled that tips distributed through the tronc system do not count towards the National Minimum Wage. The basis of the employer’s argument was that money distributed at the end of the working week by an employee known as a tronc master should count towards the National Minimum Wage as it was a payment made by the employer under Regulation 30 of the National Minimum Wages Regulations 1999. Happily, the Court of Appeal saw the injustice in interpreting Regulation 30 so as to provide the employers with the ability to use the tips to make up the worker’s wages to satisfy the provisions of the NMWR. Accordingly, employers now are unable to use tips collected on behalf of restaurant workers as an excuse for paying the workers a wage below the NMW. The downside of this is that the decision will no doubt have the effect of increasing the cost of meals for restaurant-goers and perhaps even the snaffling of tips by the employers themselves: this is already happening of course when you are asked by certain restaurants to add a tip onto your credit card bill!

 

As we all know there is a much more relaxed approach to formality in the Employment Tribunals. As if it weren’t relaxed enough the Employment Appeal Tribunal has recently ruled in Accurist Watches v Wadher that it is not always necessary to hear oral evidence or to read a witness statement from a Claimant who seeks to rely upon the exercise of the Tribunal’s discretion to extend time for bringing proceedings. In the Employment Tribunal the Claimant did not even attend at the hearing although he was represented by Counsel. The Employment Judge heard submissions and decided the question of extension of time based on the documents which were put before him. Whilst that is an unusual course it was held not to be improper and advocates can therefore expect that Tribunals will now seek to use this authority as justification for making decisions on time points during telephone PHRs. It is to be noted that no oral evidence can be given under the Rules during a telephone PHR.

 

Another messy case involving the interpretation of the much-loved Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 has emerged. As a result of the decision in North Tyneside Primary Care Trust and Aynsley and Others it appears that use of Rule 34 to review a decision to strike out a response for non-compliance with an Unless Order is inappropriate as the Rule only deals with situations where there has been a final determination of the proceedings. The striking out of a response is not a “final determination of the proceedings”. Accordingly, it is not a Judgment and could not be the subject of a review under Rule 34. Such a case has to be governed by Rules 8 and 9 of the Rules. The position is therefore that if a Respondent has his response struck out he is liable to have a Default Judgment issued under Rule 8. There is a discretion whether or not to issue a Default Judgment but if no consideration is given to that at all then all that is in place is a simple Order which can then be re-considered under Rule 10(2)(n). That is so even though the right to make an application under Rule 10(2)(n) is not one of the rights preserved by Rule 9. What a mess: Indeed the President described it as “a procedural pig’s breakfast”. Whilst this is not as eloquent a criticism as the comments of the former President in Arnold and Others v Sandwell MBC who stated this about the statutory dismissal procedures:

 

“Rarely can legislation have been so counter-productive. Provisions designed to reduce Tribunal disputes have spawned satellite litigation in which arcane and complex points of law have been argued, frequently so remote from reality that they would surprise even the most dessicated Chancery lawyer conjured up by the imagination of a Charles Dickens”.

 

Nevertheless, the phrase “procedural pi g’s breakfast” does have a certain ring about it. I shall be using the phrase regularly along with my other favourite cliché: “the dog’s dinner.”